JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE

Filing 22

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/20/2017. (lcrmc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.

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Case No. 16-cv-1888-RMC

MEMORANDUM OPINION
Judicial Watch, Inc., a 501(c)(3) nonprofit, filed a Freedom of Information Act
request seeking records from the Federal Bureau of Investigation regarding any interviews of
high-level Obama administration officials concerning Rod Blagojevich, the former governor of
Illinois.
Unhappy with FBI’s decision to withhold certain records, Judicial Watch has
sued. The government now moves for summary judgment in its favor, arguing that it has met its
FOIA obligations. Judicial Watch has also made a cross-motion for summary judgment in its
favor. Upon review of the entire record, the Court agrees with the government; the Court will
grant its motion and deny Judicial Watch’s cross-motion.
I. BACKGROUND FACTS
A. Judicial Watch’s FOIA Request
On May 9, 2012, Judicial Watch submitted a FOIA request via certified mail and
fax to FBI’s Record/Information Dissemination Section (RIDS).1 See Decl. of David M. Hardy

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While the letter request is dated June 1, 2011, the parties agree that the request was actually
made in May 2012. See Pl.’s Resp. to Def.’s Statement of Facts (Pl.’s SOF) [Dkt. 16] ¶ 1.
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(Hardy Decl.) Ex. A, Judicial Watch Freedom of Information Act Request (FOIA Request) [Dkt.
13-2] at 1. This request sought records related to any and all FBI interviews with Barack
Obama, Rahm Emanuel, and Valerie Jarrett that concerned Rod Blagojevich. Id.
Rod Blagojevich was criminally charged with multiple corruption-related crimes
in 2008 after a federal investigation into his activities. Decl. of Debra Riggs Bonamici
(Bonamici Decl.) [Dkt. 13-3] ¶¶ 5-6. After two trials, Mr. Blagojevich was convicted and
appealed to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit
ultimately affirmed his conviction, see United States v. Blagojevich, 854 F.3d 918 (7th Cir.
2017), and denied rehearing en banc, see Order, Blagojevich, No. 16-3254, ECF No. 53 (7th Cir.
June 5, 2017). The parties briefed the instant motions while Mr. Blagojevich was continuing his
appeal; the public record indicates that, at the time of this Memorandum Opinion’s writing, the
Supreme Court had most recently granted Mr. Blagojevich an extension of time to file a writ of
certiorari to November 11, 2017. See Notice, Blagojevich, No. 16-3254, ECF No. 56 (7th Cir.
August 4, 2017).
The FBI, a constituent entity of the Department of Justice, acknowledged receipt
of the FOIA Request on May 23, 2012, and began searching for responsive records. Hardy Decl.
¶ 6. FBI RIDS employees searched FBI’s Central Records System (CRS), a centralized records
system encompassing the entire FBI organization, using the system’s Automated Case Support
(ACS), an electronic case management system. Id. ¶¶ 16-18; 22. RIDS searched ACS using a
phonetic breakdown of the name “Rod Blagojevich” and then used further keyword searches
within those records using the names of the individuals named in the FOIA request.
This search identified only three FD-302 forms, which are forms used to
summarize “important facts and statements made by a potential witness in the course of an
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interview conducted by FBI Special Agents, sometimes in conjunction with federal prosecutors.”
Bonamici Decl. ¶ 7. After concluding this search, FBI determined that all three FD-302s were
exempt from disclosure because they were contained in a pending law enforcement investigative
file, and informed Judicial Watch of this fact. Hardy Decl. ¶ 23. The FBI also performed a
review of the responsive material after Judicial Watch filed this lawsuit, which yielded no
additional records. Id. Thus all records responsive to Judicial Watch’s request were withheld as
exempt.
B.

Procedural History
After filing a series of administrative appeals with DOJ, Judicial Watch filed this

lawsuit on September 21, 2016.2 On April 13, 2017, DOJ filed its Motion for Summary
Judgment, see Def.’s Mot. Summ. J. (DOJ MSJ) [Dkt. 13]. Judicial Watch filed its Opposition,
see Pl.’s Opp’n [Dkt. 15] and simultaneously filed a Cross-Motion for Summary Judgment, see
Pl.’s Cross-Mot. Summ. J. (Judicial Watch MSJ) [Dkt. 16]. DOJ responded, see Def.’s Opp’n
[Dkt. 17] and Def.’s Reply [Dkt. 18], and Judicial Watch submitted a final reply, see Pl.’s Reply
[Dkt. 21]. The matter is now ripe for the Court’s review.
II. VENUE AND JURISDICTION
Section 552(a)(4)(B) of the U.S. Code grants subject matter jurisdiction over all
actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5 U.S.C.
§ 552(a)(4)(B) (2012) (“On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from

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Judicial Watch had previously filed a lawsuit, Judicial Watch v. U.S. Dep’t of Justice, 16-cv576 (D.D.C.), that contained similar allegations to this suit. The parties voluntarily dismissed
that suit without prejudice on May 18, 2016.
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withholding agency records and to order the production of any agency records improperly
withheld from the complainant.”); see Jones v. Nuclear Regulatory Comm’n, 654 F. Supp. 130,
131 (D.D.C. 1987).
The Court’s jurisdiction under FOIA extends only to claims arising from the
improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); see also Lazaridis v. U.S.
Dep’t of Justice, 713 F. Supp. 2d 64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697 F.2d 1095,
1105 (D.C. Cir. 1983)).
III. LEGAL STANDARDS
FOIA “represents a balance struck by Congress between the public’s right to
know and the government’s legitimate interest in keeping certain information confidential.” Ctr.
for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). Under FOIA,
federal agencies must release records to the public upon request, unless one of nine statutory
exemptions apply. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C.
§ 552(b). To prevail in a FOIA case, a plaintiff must show that an agency has improperly
withheld agency records. See Odland v. FERC, 34 F. Supp. 3d 1, 13 (D.D.C. 2014). The
defending agency must demonstrate that its search for responsive records was adequate, that any
invoked exemptions actually apply, and that any reasonably segregable non-exempt information
has been disclosed after redaction of exempt information. See id.
FOIA cases are typically and appropriately decided on summary judgment. See
Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules
of Civil Procedure, summary judgment must be granted when “the pleadings, the discovery and
disclosure materials on file, and any affidavits, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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56(c)(2); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party moving
for summary judgment “bears the initial responsibility . . . [to] demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on
a motion for summary judgment, a court must draw all justifiable inferences in favor of the
nonmoving party and accept the nonmoving party’s evidence as true. See Anderson, 477 U.S. at
255. The nonmoving party, however, must provide more than the “mere existence of a scintilla
of evidence . . . . [T]here must be evidence on which the jury could reasonably find for the
[nonmoving party].” Id. at 252.
IV. ANALYSIS
A. Adequacy of the Search
The adequacy of an agency search is measured by its reasonableness, which
depends on the individual circumstances of each case. See Sanders, 729 F. Supp. 2d at 154
(quoting Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). Under FOIA, any
“requester dissatisfied with the agency’s response . . . may challenge the adequacy of the
agency’s search by filing a lawsuit in the district court after exhausting any administrative
remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999); see also
5 U.S.C. § 552(a)(4)(B). The defending agency then bears the burden of demonstrating “beyond
material doubt that its search was reasonably calculated to uncover all relevant documents.”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
An agency may show its search was reasonable, such that summary judgment in
its favor is warranted, through an affidavit by a responsible agency official, “so long as the
declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad
faith.” Sanders, 729 F. Supp. 2d at 155. Accordingly, affidavits that include “search methods,
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locations of specific files searched, descriptions of searches of all files likely to contain
responsive documents, and names of agency personnel conducting the search are considered
sufficient.” Citizens for Responsibility & Ethics v. Nat’l Archives & Records Admin., 583 F.
Supp. 2d 146, 168 (D.D.C. 2008) (quoting Ferranti v. BATF, 177 F. Supp. 2d 41, 47 (D.D.C.
2001)).
Judicial Watch does not contest the adequacy of the IRS search for responsive
records. Pl.’s Opp’n at 1 (“Plaintiff seeks only the 302s and therefore takes no issue with the
scope of Defendant’s search.”). Upon review of the affidavits submitted by DOJ, which detailed
the database search as well as the records identified, the Court concludes that DOJ met its
obligation to conduct a reasonable search.
B. Reliance on FOIA Exemptions
To prevail on a summary judgment motion in a FOIA case, a defending agency
must demonstrate that any withheld information is exempt from disclosure, and that the agency
segregated non-exempt materials. See 5 U.S.C. § 552(a)(4)(B). To meet this standard, agencies
may provide “a relatively detailed justification through the submission of an index of documents,
known as a Vaughn Index, sufficiently detailed affidavits or declarations, or both.” James
Madison Project v. U.S. Dep’t of Justice, 208 F. Supp. 3d 265, 285 (D.D.C. 2016) (quoting Ctr.
for Int’l Envtl. Law v. U.S. Trade Representative, 237 F. Supp. 2d 17, 22 (D.D.C. 2002)); see
also Vaughn v. Rosen, 484 F. 2d 820, 827 (D.C. Cir. 1973).
The only records at issue in this case are three FD-302 reports. DOJ claims that
all these records may be fully withheld from disclosure under two statutory exemptions:

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Exemption 7(A) and Exemption 5.3 DOJ Mem. in Support of Mot. Summ. J. (DOJ MSJ Mem.)
[Dkt. 13-1] at 1. Exemption 7(A) allows agencies to withhold records which “could reasonably
be expected to interfere with law enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).
Exemption 3, 5 U.S.C. § 552(b)(3), allows agencies to withhold records as to which disclosure is
prohibited by another statute. Because the Court holds that the FD-302s are appropriately
withheld under Exemption 7(A), it does not undertake a separate analysis of DOJ’s other
asserted exemptions. See Utahamerican Energy, Inc. v. Dep’t of Labor, 685 F.3d 1118, 1123
(D.C. Cir. 2012) (explaining that the government need only prevail on one exemption).
Exemption 7(A) is intended to “prevent disclosures which might prematurely
reveal the government’s cases in courts, its evidence and strategies, or the nature, scope, and
focus of investigations.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000).
An agency asserting this exemption must show that the disclosure could reasonably be expected
to cause harm to a pending investigation or law enforcement proceeding. See NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 224 (1978); see also Campbell v. HHS, 682 F.2d 256, 259
(D.C. Cir. 1982). “Exemption 7(A) permits the government to withhold ‘documents related to an
ongoing investigation from the investigation’s target because disclosure would reveal the scope
and direction of the investigation and could allow the target to destroy or alter evidence, fabricate
fraudulent alibis, and intimidate witnesses.’” EduCap Inc. v. IRS, No. 07-cv-2106, 2009 WL
416428, at *5 (D.D.C. Feb. 18, 2009) (quoting North v. Walsh, 881 F.2d 1088, 1098 (D.C. Cir.
1989)). “Under exemption 7(A) the government is not required to make a specific factual
showing with respect to each withheld document that disclosure would actually interfere with a

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DOJ also asserts that certain parts of the records are subject to withholding under Exemptions
3, 6, 7(C), and 7(E).
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particular enforcement proceeding.” Id. (citing Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir.
1980)); see also Robbins Tire, 437 U.S. at 234-35. “Rather, federal courts may make generic
determinations that, ‘with respect to particular kinds of enforcement proceedings, disclosure of
particular kinds of investigatory records while a case is pending would generally interfere with
enforcement proceedings.’” Barney, 618 F.2d at 1273 (quoting Robbins Tire, 437 U.S. at 236).
Here, the records Judicial Watch requests are those “relating to any and all FBI
interviews” of certain Obama administration officials “concerning or relating to Rod
Blagojevich,” who was subject to a federal criminal investigation. FOIA Request at 1. The FD302s are forms intended to record “important facts and statements made by a potential witness in
the course of an interview conducted by FBI Special Agents, sometimes in conjunction with
federal prosecutors.” Bonamici Decl. ¶ 7. The records are therefore well within the scope of law
enforcement records covered by Exemption 7(A).
The bigger point of contention is whether the investigation and prosecution of
Rod Blagojevich is still a “pending law enforcement proceeding.” Exemption 7(A) exists
because Congress “recognized that law enforcement agencies had legitimate needs to keep
certain records confidential, lest the agencies be hindered in their investigations or placed at a
disadvantage when it came time to present their cases” in court. Robbins Tire & Rubber Co.,
437 U.S. at 224. Still, Exemption 7(A) is not intended to “endlessly protect material simply
because it was in an investigatory file.” Id. at 230. While little caselaw discusses at what point
an investigation can be said to be no longer pending, “[u]sually the ‘purpose and point’ of an
investigation expires when its goal, the holding of an adjudicatory proceeding, is reached.
Hence, an enforcement proceeding can generally be equated with a trial.” Moorefield v. U.S.
Secret Serv., 611 F.2d 1021, 1025 (5th Cir. 1980). Courts have held that “[a] pending appeal of a
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criminal conviction qualifies as a pending or prospective law enforcement proceeding for
purposes of Exemption 7(A),” Dugan v. U.S. Dep’t of Justice, 82 F. Supp. 2d 485, 500 (D.D.C.
2015), and courts have also allowed agencies to assert Exemption 7(A) during the pendency of
collateral habeas proceedings brought under 28 U.S.C. § 2255. See King v. U.S. Dep’t of Justice,
No. 08-cv-1555, 2009 WL 2951124 at *6 (D.D.C. Sept. 9, 2009); Johnson v. FBI, 118 F. Supp.
3d 784, 793-95 (E.D. Pa. 2015).
Here, the public record indicates that Rod Blagojevich still has an opportunity to
contest his conviction by seeking review by the Supreme Court. Judicial Watch argues that this
is insufficient to support withholding records under Exemption 7(A) because any Supreme Court
review would be only of Mr. Blagojevich’s resentencing, and because DOJ has failed to
articulate how release of the FD-302s could reasonably be expected to interfere with what
remains with Mr. Blagojevich’s appeal. Pl.’s Opp’n at 3.
However, the fact remains that (1) the FD-302s are records contained in a law
enforcement investigative file that (2) is currently being directly appealed. That appeal may be
very short-lived, but it is not the Court’s role to guess how or when Rod Blagojevich’s appeal
may be resolved. Until the appeal is fully exhausted, disclosure of investigative materials could
be reasonably expected to interfere with whatever occurs going forward. Rod Blagojevich has
not exhausted his options for appeal before the courts, and, until that time at least, the
government is entitled to preserve the strategies, theories, and impressions found in its
investigative files.
Because Rod Blagojevich was already convicted in a public trial, there is an
additional concern that records otherwise exempt under Exemption 7(A) have passed into the
public domain. “Under our public-domain doctrine, materials normally immunized from
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disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent
public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). Had DOJ sought to
withhold its entire file, it may have been appropriate for it to detail which, if any, records had
passed into the public domain as a result of the trial. However, in this instance, only three
records are at issue, none of which is alleged to have been introduced as an exhibit, or otherwise
passed into the public domain. The Court concludes therefore that DOJ has adequately shown
that the three FD-302s are exempt from disclosure under Exemption 7(A).
C. Segregability
The only remaining question is whether DOJ adequately assessed whether any
non-exempt portions of the withheld FD-302s are segregable from exempt information. While
an agency may properly withhold records or parts of records under FOIA exemptions, it must
release “any reasonably segregable portions” of responsive records that do not contain exempted
information. Schoenman v. FBI, 575 F. Supp. 2d 136, 155 (D.D.C. 2008); 5 U.S.C. § 552(b).
An agency bears the burden of demonstrating that all reasonably segregable portions of a record
have been disclosed, and may do so by “offering an affidavit with reasonably detailed
descriptions of the withheld portions of the documents and alleging facts sufficient to establish
an exemption.” Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008).
DOJ asserts that it made “every effort” to “provide plaintiff with all material in
the public domain and with all reasonably segregable, non-exempt information.” Hardy Decl.
¶ 25. “Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007).

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In this instance, the Court concludes that DOJ has met its burden to show no
segregable information was inappropriately withheld. The only records withheld were three FD302s, interview memos prepared by FBI investigators when speaking to potential witnesses.
Exemption 7(A) is meant to apply broadly to an agency’s “evidence and strategies, or the nature,
scope, and focus of investigations,” which can mean more than just simply the information
contained therein. Maydak, 218 F.3d at 762. No evidence casts doubt on DOJ’s sworn
statement, and the Court finds that it has satisfied its obligation to release all segregable factual
information. Accordingly, the Court finds that DOJ has met its burden.
CONCLUSION
For reasons stated above, the Court will grant DOJ’s Motion for Summary
Judgment [Dkt. 13], and will deny Judicial Watch’s Cross-Motion for Summary Judgment [Dkt.
16]. Judgment will be entered in favor of DOJ. A memorializing order accompanies this
Memorandum Opinion.

Date: October 20, 2017

/s/
ROSEMARY M. COLLYER
United States District Judge

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